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English Legal System + Law Making Flashcards

1
Q

What are the 3 sources of law?i

A

Statute, common and custom law

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2
Q

What is statute law and state an example

A

Statute law is law that is made by parliament. It helps enforce parliamentary sovereignty.
E.g. criminal attempts act 1981

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3
Q

What is common law and state an example?

A

Common law is law that is made by the courts (judges) when they decide cases
E.g. r v Cunningham

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4
Q

What is custom law?

A

Custom law is a body of unwritten law based on legal precedents established by the courts
- least common source of law

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5
Q

What is parliamentary sovereignty?

A

Parliamentary sovereignty makes parliament the supreme legal authority in the UK, which can create or end any law. It states that law made by parliament is the highest form of law.

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6
Q

What is the acronym for why we use statutory interpretation?

A

INTERPRET

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7
Q

What does the N in INTERPRET mean?

A

New unforeseen situations may arise

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8
Q

What does the T stand for in INTERPRET in statutory interpretation?

A

Technological advances may mean that old statutes do not cover modern day issues

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9
Q

What does P stand for in INTERPRET in statutory interpretation?

A

Passage of time means word changes in meaning.

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10
Q

What are the 3 rules in statutory interpretation?

A
  1. The literal rule
  2. The golden rule
  3. The mischief rule
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11
Q

What is the literal rule?

A

The literal rule is when words in statute are given their ordinary, literal, dictionary meaning, even if the result is absurd

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12
Q

What case is used in the literal rule?

A

Whitely V Chappell

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13
Q

What is an advantage of the literal rule?

A

It upholds parliamentary sovereignty as parliament’s words are followed exactly.

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14
Q

What is a disadvantage of the literal rule?

A

Words can have more than one meaning and the literal rule does not take this into account

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15
Q

What is the golden rule?

A

It is used when the literal rule produces an absurd result, the judge should alter the words to produce a satisfactory result.

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16
Q

What are the 2 approaches in the golden rule?

A

The narrow and wide view

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17
Q

What is the narrow view?

A

The narrow view is where the word has more than one possible meaning, then the court can chose the more suitable meaning to avoid absurdity.

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18
Q

What is the case that is used in the narrow view?

A

R v Allen

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19
Q

What is the wide view?

A

The wide view is where words that have only one clear meaning would make the outcome absurd, the court can modify (change) the meaning to avoid absurdity.

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20
Q

What is the case that is used in the wide view?

A

Re sigsworth

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21
Q

State an advantage of the golden rule

A

The golden rule provides an escape route from the absurd outcomes of the literal rule.

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22
Q

What is a disadvantage of the golden rule?

A

It is limited to being used only when the literal rule would lead to an absurd outcome.

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23
Q

What is the mischief rule?

A

The mischief rule is when the judges can ignore the wording of the statute to react to the desired outcome

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24
Q

What is the leading case for the mischief rule?

A

The leading case is r v heydon
- it provides 4 elements that the court would need to consider

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25
What is another case that can be used in the mischief rule?
Smith v Hughes
26
What is an advantage of the mischief rule?
27
What is a disadvantage of the mischief rule?
28
What are the 3 principles of law?
1. Rule of law 2. Separation of powers 3. Parliamentary sovereignty
29
Who proposed the rule of law and what did he propose?
Dicey- he proposed that there we 3 rules that should be followed with the law
30
What is the rule of law that dicey established?
That there must be no punishment without law, meaning that the state can only exercise law in accordance with agreed legal rules.
31
What is the second rule of law?
Everyone is equal before the law, meaning that even government ministers are subject to the law.
32
What is the third rule of law?
Rights are secured by judicial decisions in individual cases
33
What does Dicey’s rule of law say about the law in summary?
That everything should be fair, certain and predictable under the law.
34
What are the 3 separations of powers in the triangle?
Executive, judiciary and legislature
35
What is the executive?
The executive propose laws, it is made up of the government, PM and cabinet.
36
What is the judiciary?
The judiciary interpret and apply laws and are made up of judges.
37
What is legislature?
Legislature scrutinise and pass laws, it is parliament.
38
What does the theory of separation of powers suggest?
That the 3 branches of state should remain separate to avoid power being in the hands of one person or group.
39
What is access to justice?
Justice should be available to everyone regardless of the ability to pay.
40
What is public funding?
Public funding is money provided by the state to pay the legal fees of those who could not otherwise afford it.
41
What is legal aid?
Legal aid ensures access to justice and is particularly for individuals who cannot afford legal representation and provides financial assistance to those who cannot afford the costs.
42
What are the 3 instances that legal aid is available for?
Legal aid is available where: - the case is serious - the person cannot afford to pay legal fees - the case is elligible
43
What does eligibility in relation to legal aid and access to justice?
Eligibility is whether the person is able to be offered legal aid based on their income and legal issue.
44
What are the 2 tests for legal aid?
Means test and merits test
45
What is the means test?
The means test assesses the applicants financial situation, including income savings and assets. If the individual earns above a certain number, they may not qualify.
46
What is the merits test?
It is for civil cases and is assessed to determine whether the case has a reasonable chance of success
47
What are the advantages of legal aid?
It helps to address Diceys idea that everyone is equal before the law (the rules of law)
48
What are the disadvantages of legal aid?
Due to government cuts, free legal advice is unavailable in certain areas of law
49
What is private funding?
The financial resources individuals use to pay for legal services without relying on public funding options.
50
What is the main solution for private funding?
Conditional fee agreeements
51
What are conditional fee agreeements?
They are a “no win, no fee” agreement where if the case is lost then no fee has to be paid
52
What happens when the case is won in regards to conditional fee agreement?
The claimant pay a success fee out of their damages awarded
53
What is an advantage of CFA?
Hopeless cases will not be taken on, which saves courts time.
54
What is a disadvantage of conditional fee agreeements?
Some client may not be able to afford the insurance premiums required.
55
What do civil courts concern?
Civil courts concern disputes between individuals, where an individual or business thinks that someone has broken their legal rights in some way.
56
What are the 3 divisions in the high court?
Family, chancery and kings bench division.
57
What is the chancery?
The division that deals with financial and money related cases.
58
What is order of the courts in the civil court structure
Top: Supreme Court Court of appeals High court County court
59
What is an advantage of the civil court?
It is a fair process as cases are treated alike.
60
What is a disadvantage of civil courts?
It is a costly process to proceed to trail and can be very slow with many steps
61
What are the 3 categories of criminal offences?
Summary offences Triable either way offences Indictable offences
62
What are summary offences?
Summary offences are the least serious offences such as assault and battery and are held in the magistrates court.
63
What are triable either way offences?
The middle range offences such as ABH or Theft and are held in the magistrates or crown court.
64
What are indictable offences?
The most serious offences such as murder and manslaughter and are held in the crown court
65
What is the court structure in criminal law?
Top: Supreme Court Court of appeal Crown court Magistrates court
66
What is an advantage of criminal courts?
It is a fair trial process- as the prosecution and defence both have the opportunity to present their cases.
67
What is a disadvantage of criminal courts?
It may be a slow process as there is a delay in the system as of backlogs of cases, which can cause long waiting times for trials.
68
What is the act that the courts use to sentence offenders?
The sentencing act 2020
69
What part of the sentencing act are the aims of sentencing in?
S57 (2)
70
What are the 5 aims of sentencing?
Punishment Deterrence Rehabilitation Public protection Reparation/restorative justice
71
What is punishment in relation to the aims of sentencing?
Punishment (retribution) is taking revenge on behalf of the victim and society
72
What is deterrence in terms of the aims of sentencing?
Deterrence is preventing people from committing crimes in the future
73
What are the 2 types of deterrence and what do they mean?
General deterrence= putting the general public off committing crimes Individual deterrence= putting individuals off reoffending
74
What is rehabilitation in terms of the aims of sentencing?
Rehabilitation is to reform the offender and try to “cure” their criminal behaviour.
75
What is public protection in terms of the aims of sentencing?
Public protections is preventing the offender from harming the public, particularly to crimes of a violent or sexual nature.
76
What is reparation/restorative justice in terms of the aims of sentencing?
It is when offenders provide remedies to their victims or the community (such as compensation or letters)
77
What are sentencing factors?
There are 2 sentencing factors that affect the level of sentence that is passed.
78
What are 2 sentencing factors?
Aggravating factors and mitigating factors
79
What are aggravating factors?
Factors that make a harsher sentence more likely.
80
What are some examples of aggravating factors?
Vulnerable victim, previous convictions, use of a weapon
81
What are mitigating factors?
Mitigating factor are factors that make a lenient sentence more likely.
82
What are some examples of mitigating factors?
Young defendant, no previous convictions, showed remorse
83
What are the 4 types of sentences?
Custodial Community Fines Discharges
84
What are custodial sentences?
Custodial sentences are the most serious type of sentences and is when the defendant is deprived of their freedom by being put into prison.
85
What is an advantage and disadvantage of custodial sentences?
Adv: protect the public by removing criminals from the general population Disadv: over half of prisoners reoffend, so does not effectively rehabilitate offenders
86
What are community sentences?
Given by court for less serious crimes and instead of going to prison, the offender must carry out certain activities or requirements in the community.
87
What is an advantage and disadvantage of community sentences?
Adv: benefits the community Disadv: may be less effective than prison and doesn’t stop reoffending
88
What is fines?
Fines are the most common sentence and must take into account the defendants finances.
89
What is an advantage and disadvantage of a fine?
Adv: no maximum level of fine so anyone can be fined if appropriate Disadv: many offenders are on low income or benefits and may struggle to pay a fine
90
What are the 2 types of discharge and what do they mean?
Absolute discharge= D is free to g Conditional discharge= no further action is taken unless the defendant reoffends within a set period of up to 3 years
91
What is an advantage and disadvantage of discharges?
Adv: encourage better behaviour in the future Disadv: may be seen as an easy option and may be unfair on victims of crime
92
What are magistrates also known as?
Justices of the peace
93
What is the acronym used for the role of the magistrates?
SAVES
94
Why is the acronym SAVES used for the role of the magistrates?
As a lay magistrate SAVES the justice system money as they are unpaid and only get paid expenses.
95
What does the 2 S’s in SAVES stand for?
Sentence and Summary + some triable-either way hearings.
96
What does the A stand for in SAVES?
Assisted by legal adviser (Clerk)
97
What does the V stand for In SAVES?
Verdict
98
What does the E stand for in SAVES?
Extending detention period for suspects
99
What qualifications are required to be a magistrate?
No formal qualifications are required, they must be between 18-65 and with no criminal record
100
What type of training do magistrates get?
Magistrates are trained before sitting and throughout service, often carried out the Clerk
101
What is an advantage of the Magistrates?
They are relatively cheap because they are unpaid so majority of criminal cases are heard without the need of a professional judge.
102
What is a disadvantage of Magistrates?
Magistrates are unrepresentative of society in terms of age, as most magistrates were 60 or over, so they do not truly reflect the society they serve.
103
How many people are randomly selected to be part of the jury?
12
104
What is the role of the jury?
The main rule and purpose of the jury ias that the Defendant is tried by his equals
105
What must the jury do?
Listen to evidence from barristers Listen to the judges summing up Decide the facts of the case Apply the law, as explained to them by the judge, to the facts of the case.
106
What must the juries decision be?
Unanimous. All 12 must agree
107
What is an advantage of juries?
Allows public participation in the justice system, which increases public confidence in the system.
108
What is a disadvantage of juries?
Juries may lack the ability to do an effective job and can be a particular problem in cases where the evidence is complex.

Law (6 decks)

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